Hearings and the foster parent

Who may be given the standing to be a party in proceedings before a children’s hearing? A review of recent cases, published online with the November 2014 Journal (Alan Johnston, “When is a person a relevant person?”, www.journalonline.co.uk/Magazine/59-11/1014672), examined how the courts are interpreting that question. The author concluded that the child’s welfare is the driving factor in whatever decision is to be made.

The Inner House has now issued a decision, MT and AG v Gerry [2014] CSIH 108 (12 December 2014), which makes clear that the welfare of the child is not a consideration when applying the new test under the Children’s Hearings (Scotland) Act 2011. It also provides clarity about what is required of children’s panel members when making decisions about whether or not a person should be deemed to be a relevant person.

People who have parental responsibilities and rights under Part I of the Children (Scotland) Act 1995, such as parents and guardians, are automatically relevant persons. In some circumstances, the children’s hearing can decide that a person should be treated as a relevant person. In Principal Reporter v K [2010] UKSC 56, the Supreme Court examined how children’s hearings and the courts exercised their discretion to treat people, in particular unmarried fathers, as relevant persons under the old test in s 93(2)(b) of the Children (Scotland) Act 1995. The court required that the legislation be read in such a way as to be ECHR compliant. The 1995 Act provision has been replaced with a new test in s 200 of the 2011 Act.

Status in question

Being a relevant person confers various rights and obligations, including attendance at hearings, the right to be legally represented, to be heard and have your views taken into account, and the right of appeal against decisions by a hearing or sheriff in related court proceedings. The 1995 Act enabled the reporter to decide whether a person should be treated as a relevant person. The 2011 Act transfers this decision to the children’s panel. The Act gives an individual the right to ask that a pre-hearing panel consider that he or she should be deemed a relevant person. It also allows the reporter to refer a party to a pre-hearing panel of his own volition, if the reporter considers that the party meets the statutory test.

Following implementation of the Act, the issue of relevant person status again became controversial. In some areas, at the instance of the reporter, foster carers were regularly appointed as relevant persons, giving them significant rights which the child’s parents and their representatives felt were neither necessary nor justified.

In the MT case, Mr and Mrs R were foster carers for two children in care. They had looked after the children since February 2012. In July 2013, one of the parents of the children sought a review hearing to challenge how the local authority was managing contact. The locality reporter used her power under s 79(2)(b) of the 2011 Act to convene a pre-hearing panel to decide whether the foster carers should be deemed to be “relevant persons” for the purposes of the children’s hearing. A pre-hearing panel, convened on 23 August 2013, decided that the foster carers should be deemed to be relevant persons.

The statutory test is set out in s 81(3) of the 2011 Act as follows: “The pre-hearing panel must deem the individual to be a relevant person if it considers that the individual has (or has recently had) a significant involvement in the upbringing of the child.”

The pre-hearing panel’s decision in respect of each child recorded that: “It is the panel’s view that the foster carers, having cared for [the respective child] within their own home for the previous [18] months, have had ‘significant involvement in the child’s upbringing’, thus meeting the panel’s guidance criteria for relevant person status.”

Both parents separately appealed. The sheriff upheld the pre-hearing panel’s decision and found that the foster carers had a significant involvement with the children’s current upbringing and therefore should be deemed relevant persons for the purposes of the 2011 Act: X, Appellants 2013 SLT (Sh Ct) 125. The parents appealed the sheriff’s decision by way of stated case. The Inner House upheld the appeal and quashed the decision of the sheriff. Given the passage of time and a change in circumstances, the court declined to direct the sheriff to remit the decision back to a further pre-hearing panel and stated that a fresh application should be made by the reporter in respect of these foster carers if that were still appropriate.

“Significant” which way?

The court confirmed that the sheriff erred in law in considering that the pre-hearing panel required to have the welfare of the child as its paramount consideration when making its decision regarding the standing of the foster carers. The test set out in s 81(3) required the party to have a quasi-parental relationship with the child which entailed influence over significant decisions affecting their ongoing welfare. This was a matter of fact. If, on the facts, the test was met, the pre-hearing panel had no choice but to deem the party a relevant person.

Counsel for the appellants argued that to demonstrate a significant involvement in the child’s upbringing, something more than simply providing care for a child is required. National guidance for panel members has been issued by the National Convener of Children’s Hearings Scotland. The guidance quotes the Oxford English Dictionary definition of “upbringing” as “the treatment and instruction received by a child from its parents throughout its childhood”. It states that pre-hearing panels’ decisions should be based on the facts and circumstances of each individual child, and that each child’s relationships should be considered individually. In this case the pre-hearing panel had given no such detailed consideration, relying only on the length of time the foster carers had looked after the children.

The respondent argued that the relationship between a foster carer and a foster child was both well established and well understood. A foster carer would determine most aspects of the child’s day-to-day life, such as when they got up and when they went to bed, what they wore and how they spent their days. A foster carer’s information and input was essential for a children’s hearing to make decisions about the child’s welfare. It was self-evident that if foster carers looked after a child in their own home for more than a few weeks or months, their involvement in the child’s upbringing would be significant.

The court drew a distinction between “significant involvement in a child’s upbringing”, and “significant involvement in a child’s day-to-day care”. It did not agree that a fostering relationship was a uniform relationship. The court took the view that, in this context, where a statutory provision confers procedural protection to a person to the extent that they become a party to the children’s hearing, the qualifying adjective “significant” in relation to involvement in a child’s upbringing should be construed purposively. Whether a foster carer’s involvement in a child’s upbringing is significant will depend on the terms of the written agreement the local authority is required to have with the foster carers, and how this is implemented in practice.

There was no evidence in this case that the pre-hearing panel had proceeded on anything other than the foster carers having provided care for the children in their home during a period approaching 18 months. That was only one factor. The court found that this was not sufficient in itself, without further inquiry and further information, to conclude that the foster carers had created a relationship with the children which amounted to a significant involvement in their upbringing. The court opined that in order to assess whether a foster carer had been given, or had created, a relationship with the child which demonstrated a sufficiently significant involvement in the upbringing of the child to justify deeming the foster carer a “relevant person”, a very detailed consideration of the care arrangements was required.

The court noted with approval the range of factors which the National Convener’s guidance suggested the pre-hearing panel should consider when deciding whether someone should be deemed to be a relevant person:

• “The nature of the involvement in the child’s life, for example, is the person fulfilling a parental role in relation to the child – this could be involvement in key decisions in relation to the child, such as education or medical treatment, without necessarily having care of the child
• The length of time the person has been involved in the child’s life
• Living arrangements, for example do the child and person live in the same house
• Where the person and the child do not live in the same house, the level and quality of contact the person has with the child
• The child’s view, if they are old enough to provide it, of the significance of their relationship with the person.”

True role

Foster carers have a critical role to play in children’s hearings as key supporters of the child. Nevertheless, as the sheriff pointed out at the original appeal, their role may be a transient one. To confer quasi-parental status on foster carers in decision making about vulnerable or troubled children is a significant step. It is only in exceptional circumstances that their rights, and views, should be given as much weight as, or more than, those of parents and other family members. Deeming them to be relevant persons may set up unnecessary conflicts between a child’s parents and carers, or between the local authority and the foster carer who objects to the local authority’s decision, for example to return a child to their family.

Foster carers implement the decisions of the local authority. Relevant person status opens an avenue for a local authority to orchestrate appeals via foster carers against decisions of the hearings or the courts. Giving carers relevant person status is justified only in those cases in which the foster carer’s role is really that of substitute parent, and they can make important decisions about the child’s upbringing in a real and meaningful way, independently of their employing local authority. It is a step which the Inner House has now made clear should only be taken after careful and detailed consideration.